Lord Rea: My Lords, can the Government somehow explain to Mr Putin that the Chechen and the other Islamic peoples of the north Caucasus have never accepted that they are part of Russia? The present conflict is, in fact, a continuation of the colonial struggles that took place in the 18th and 19th centuries. Is it not likely—as in the West Bank, Iraq and any other country that is forcibly occupied—that insurgent attacks, ugly as they are, are likely to continue until a firm agreement is made to withdraw the occupying forces?

Lord Hylton: asked Her Majesty's Government:
	What representations they have made to the government of Israel about the 23 square miles of land in the West Bank alleged to have been expropriated from Palestinian owners since July.

Lord Triesman: My Lords, we are greatly concerned by Israeli expropriation of Palestinian land through settlement building and the routing of the barrier on occupied territory, particularly around east Jerusalem. It is contrary to international law. We regularly raise our concerns on these issues with the Israeli government. Most recently, my honourable friend Dr Howells, the Minister of State, raised our concerns with Foreign Minister Shalom and Housing Minister Herzog during his visit to the region on 27 to 30 September.

Lord Triesman: My Lords, we welcomed in this House before the successful conclusion of the disengagement from Gaza. It was a brave step and it was done with a good deal of skill and it offers some prospects of further peace being achievable. I believe that the whole quartet, quite aside from us, believes that. I can understand that the Israelis will look at the recent upsurge of violence, including the suicide bombing in Hadera on 26 October, which killed five people and injured a further 55 people, some of them gravely, as being a further and major assault on the security of the state of Israel. These matters have to be kept in balance; progress must be made on both sides.

Lord Triesman: My Lords, the travel advice will be issued much closer to the time when we have an appraisal that is completely up to date on the relative security of the visits. We are advising people to travel with extreme caution at the moment, as I have no doubt the noble Baroness knows. I can only repeat on the substance of the question that we believe that the barrier is illegal; it is not being built in convention with international agreements. That is something that is put to the Israelis at all times, notwithstanding their right to ensure that their citizens can go through an ordinary day without the risk of being murdered.

Baroness Scott of Needham Market: My Lords, Ministers were quick to go to the media on Friday to denounce the LGA figures as fantasy. Does the noble Lord accept that this does not go very far in addressing what is now a serious financial problem in essential public services? What steps are the Government taking to put local government finance onto a permanent and sustainable footing so that this annual ritual of claim and counterclaim can be brought to an end?

Lord Bassam of Brighton: My Lords, our record on local government funding is very good, and we build on that year-on-year. Since 1997 there has been a 33 per cent real terms increase in government grant. That compares with a 7 per cent reduction in the four years prior to our coming to office in 1997, when the Conservatives were in government. The 2005–06 settlement was the eighth successive year in which the Government had provided local government overall with a real terms cash increase in government grant above inflation. Government grant was up during that year by £3.5 billion, a 6.3 per cent cash increase.

Lord Harris of Haringey: My Lords, is my noble friend aware that the extra responsibilities which have been placed on local government in the past eight years are a demonstration of the commitment that this Government have to the principles of local democracy and local autonomy? Will he comment on whether or not the new systems of management, in particular those local authorities that are now run by directly elected mayors, are already showing signs of greater and more efficient use of the resources with which they are provided?

Baroness Walmsley: My Lords, in moving Amendment No. 1, I wish to speak also to Amendment No. 2 with which it is grouped. At an earlier stage of the Bill, we tried to obtain an explicit reference in Clause 9 to the Convention on the Rights of the Child. I set out four main reasons for doing this. The convention is the most ratified of all human rights treaties. It is one of the most comprehensive treaties covering children's rights. Children are uniquely vulnerable and easy to ignore and England's 11 million children, unlike those in the rest of the UK, do not have a rights-based Children's Commissioner. On that occasion I was delighted that the Minister said that she would go away and think about how to ensure that the commission will work for children. That has always been our point—to gain assurances that children will very much be part of this vital new body. The Minister well understands that we are looking for a steadfast guarantee that children will be included in the establishment, operation and review of the commission, and that that will not be left to chance or good will.
	Amendments Nos. 1 and 2, which we are debating today, avoid the problem of lists that the Minister described in her reply. "Children and adults" includes everybody. It could be argued that children are implicitly covered in the legislation. However, I strongly fear that without an explicit reference to children in the Bill the new commission will focus exclusively on adults. Experience shows that, where children are not explicitly provided for in an organisation, they are ignored or given inadequate resources and attention. That is why we have Every Child Matters and the new roles at local authority level of children services director and lead member for children's services, to make sure that children get their fair share of attention and resources. That is the Government's own agenda.
	Are we satisfied that the existing equality bodies are working adequately for children; that children's issues are part of their strategic planning; that they regularly consult children to find out about their experiences and what matters to them; that their casework includes those under 18; and that they are working with the Government and others to bring about greater equality for children's rights? If children are missing out now, what guarantees have we that they will not be kept to the margins in the future?
	Working for children does not mean simply adapting what is written or done for adults; it means being child-focused from the start—consulting them, setting priorities relating to them, and having the staff and organisational competence to work effectively and systematically to improve their lives. I am reminded that the National Service Framework for Children, Young People and Maternity Services states that, until recently, children's needs in the NHS were seen as no more than,
	"smaller beds and smaller portions of food".
	We can all learn from that.
	Involving children in knowing their rights and responsibilities as young citizens can be an immense power for good—both for them as individuals and also for their families, schools and communities. Only this morning, I visited one of UNICEF's "Rights Respecting Schools", Kempshott Junior School in Basingstoke, and saw for myself the benefits—both academic and social—of incorporating an understanding of the convention into their citizenship education. That was at primary level; I was much impressed.
	The UN Committee on the Rights of the Child has produced guidelines on establishing human rights institutions for children. It stresses the participation of children in the work of the institution, the need for tailored programmes to advance their human rights, and urges that:
	"The legislation (establishing the institution) should include provisions setting out specific functions, powers and duties relating to children linked to the Convention on the Rights of the Child and its optional protocols".
	I accept the Minister's assurances that the Convention on the Rights of the Child is covered in "other human rights" in the Bill, but ask that she think again about including a specific reference to children in this Bill setting up the commission. The task in establishing this new commission is not just to make sure children are not left out; it is to plan systematically to put them in. That will mean having a fresh approach and doing some things very differently. I believe my amendments will enable this to happen and I look forward to the statement the Minister promised us at an earlier stage. I beg to move.

Baroness Ashton of Upholland: My Lords, the noble Lord is absolutely correct.
	I would like to say three things. First, I give you the guarantee that the commission will be promoting and working with and for children. Secondly, I will suggest to my honourable friend Meg Munn, who has responsibility for this policy and who I know will be delighted, that she meet with the noble Baronesses, Lady Walmsley and Lady Howe of Idlicote, to have one more go at looking at what might be done. As noble Lords will know, I take this issue very seriously. Thirdly, in the work that we do in establishing the commission, I will commit to come back to the House and ensure that we are very clear about how the commission is going to work with children.
	Nothing divides us on this issue. I am fully committed to ensuring that the commission works closely with and for children. I simply cannot effect this amendment for the technical reasons I have given. I do, however, commit the commission and give the guarantee unreservedly.

Baroness O'Cathain: My Lords, like the right reverend Prelate the Bishop of Newcastle, I welcome the principle of non-discrimination on the grounds of sexual orientation. However, I oppose the amendments because they contain no guarantees of proper religious protections, which means that there could be alarming problems for Churches and religious organisations.
	The amendments empower the Secretary of State to use secondary legislation to address sexual orientation discrimination. Under the wording of the amendments the regulations could include religious protections, but I am told that that is not required. Maybe they will; maybe they will not. If there are protections, what will they be? We do not know. There is uncertainty on this issue.
	There might be circumstances in which a religious group may want to refuse a service because of its religious ethos. Church membership, for example, is often denied to people who do not accept the basic, ethical teaching of the Church—much the same way as membership of a political party is denied. Religious groups must have protection against legal actions designed to attack their doctrinal convictions. I believe that that is a very serious point.
	I have been contacted by the right reverend Prelate the Bishop of Winchester. He wanted to be here to speak to these amendments but has been unavoidably delayed in Winchester. His view is that these amendments have come much too late in our proceedings to allow proper consultation with those religious groups that would want to have their say about how this would be implemented. He is concerned that legislating by secondary legislation does not allow the opportunity for the proper parliamentary scrutiny that a Bill would allow. Here I echo what the right reverend Prelate the Bishop of Newcastle said.
	The right reverend Prelate the Bishop of Winchester feels the whole thing has about it—in his words—"the same whiff of social engineering which was present in the wording of Clause 3, which talked about the creation of a society". The simple fact is that these amendments do not contain any religious protections, nor do they guarantee that they will be provided. That is why I do not support them and would like to hear what the Minister has to say.

Baroness Ashton of Upholland: My Lords, the purpose of this amendment is to enable the commission to support proceedings alleging that domestic legislation is incompatible with EC law in equality between men and women, or EC legislation combating discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. This covers provisions under Articles 13 and 141 of the EC Treaty, such as the Equal Treatment Directive, the Equal Pay Directive and the race and framework directives based on Article 13.
	As the Bill is currently drafted, the commission will be able to provide assistance only where the proceedings relate wholly or in part to one or more of the equality enactments. These, as noble Lords will know, include all the domestic legislation prohibiting discrimination, such as the Sex Discrimination Act (1975) and the Race Relations Act (1976), as defined in Clause 33 of the Bill. There is therefore no provision for the commission to support an individual alleging, for example, that they have been disadvantaged by other GB legislation which they believe to be incompatible with EC equality and discrimination law. However, that is less extensive than the powers that are currently available to the Equal Opportunities Commission as a result of case law. As some noble Lords know very well, about 10 years ago a case was brought and won by the Equal Opportunities Commission. It concerned the adverse impact on women of certain employment legislation provisions that required two years continuous employment for full-timers to qualify for unfair dismissal and redundancy payments but five years for part-timers, who are of course mostly women. The courts were asked to consider whether those provisions were compatible with community law. The Law Lords found for the Equal Opportunities Commission, which had brought the case for a judicial review, but expressed the view that individual claimants should bring their claims not by way of judicial review but before an employment tribunal, supported by the Equal Opportunities Commission.
	If we do not amend the Bill in that way, the new commission will not be able to support an individual bringing a similar case. That would mean that the new commission would have fewer powers than the Equal Opportunities Commission, which, as the House will know, has never been our intention. This amendment will enable the commission to do this to support a case in which an individual alleges that they have been disadvantaged by other legislation that they believe to be incompatible with EC equality and discrimination law. I commend the amendment to your Lordships' House and beg to move.

Lord Lester of Herne Hill: My Lords, in moving Amendment No. 6 and speaking to Amendment No. 5, I shall speak also to Amendments Nos. 7 and 8. The Minister explained clearly the object of the amendment, which I strongly support. It ensures non-regression; that is, it ensures that what the EOC can do will be able to be done by the new commission. There is just one snag, which comes from the problem of lists. I can see the Minister scowling but nevertheless I must deal with it.
	The snag is that the way in which Amendment No. 5 is drafted does not properly reflect the EU race directive or the Race Relations (Amendment) Act 2000, so it does not properly reflect community law with regard to the other commission—the CRE. That is why my Amendments Nos. 6, 7 and 8 have been tabled, to fill the gap in the Government's amendment. To be clear, under EU law, nationality discrimination is forbidden, which is why Amendment No. 6 would add the word "national" and Amendment No. 7 includes the words "nationality (including citizenship)". That reflects both the race directive and the Race Relations (Amendment) Act 2000. That is why my Amendment No. 8 would include equal opportunity "between different racial groups", as between men and women.
	This problem goes back to the well-known problem that the noble Baroness, Lady Ashton, refers to often—the problem of having lists. The moment you have lists, you find that you may leave something out. It is important that the race side of the question has not been properly dealt with. I would not be surprised at all if the Minister were to say that the matter needs to be thought about further and dealt with in the other place. I should be entirely content with that—but I want to get right these provisions about giving assistance, as a matter of Community law. I beg to move.

Baroness O'Cathain: My Lords, I thank the Minister for her words. I hope that the commission and indeed the courts will pay heed to what she has said. I beg to withdraw the amendment.

Baroness Miller of Hendon: My Lords, it is with considerable regret that I find myself in the position of being virtually forced to bring the amendment back at this final stage of the Bill, which in general terms is accepted by all parties as being very necessary in this day and age. The amendment is the same as that I proposed in Committee. It deletes two words from Clause 45, which describes the offence of harassment as being something that is done by one person, A, with "the purpose or effect" of violating someone's dignity or,
	"creating an intimidating, hostile . . . or offensive environment for B",
	where B is another person. In the strongest possible terms, I object to the words "or effect", because they mean that we are not merely banning acts that are done with the express purpose of violating someone's dignity or intimidating or degrading B, but the Government want to ban acts that a person can claim have that effect.
	The Oxford English Dictionary describes "effect", among many other descriptions, as "an impression", which is a purely subjective test that it is impossible to disprove. If B says something that has that effect, who will gainsay him? We have only to look at the events of the past few weeks to see what ludicrous effects politically correct opinions can have. I am not talking about the farcical decision to commemorate the Battle of Trafalgar as having been fought between the red and blue fleets, rather than between us and the French. I am talking about the nonsense of one local authority renaming Christmas lights as winter lights, about schools banning nativity plays and Christmas cribs, and about the kite flying over Bonfire Night claiming that it is offensive to Catholics. Actually, Bonfire Night commemorates the prevention of an act of religious terrorism.
	I hope that the Minister will forgive me for saying this, but I am talking about the absolute farce of the Home Office—the department of one of the two Ministers conducting this Bill throughout your Lordships' House—threatening to withdraw support and funding for an annual carol service at St Martin in the Fields, one of the most famous churches in London, on the grounds that it is too Christian. I wonder if the Minister's department has noticed that every year, a Christmas tree is erected in Trafalgar Square just in front of St Martin in the Fields. Perhaps we will be expected to reject the Norwegians' generous annual gift, on the grounds that some mischief maker might claim that, as the Bill says, it has the effect of violating his dignity or humiliating him. Worse still, some mindless bureaucrat might decide that it might conceivably do so, however remote that idea appears to be.
	The irony is that responsible spokesmen for all the major non-Christian religions have said time and again that the celebration of Christian festivals and the publication of biblical texts outside churches does not offend them in any way. Equally, I have never heard of any one person of the dominant faith complaining about the celebrations—sometimes colourful celebrations—of the festivals of other faiths.
	I refer to the answer that the Minister gave me when I raised this matter on Report. She said that,
	"it would always be open to those who had the 'effect' of discriminating"—
	she probably meant harassing—
	"to say, 'I didn't intend it'".—[Official Report, 19/10/05; col. 821.]
	With the greatest respect to the Minister, who is one of Her Majesty's learned counsels, I believe that that is totally incorrect.
	The clause says nothing about the necessity of proving an intention to have that adverse effect. On the contrary, the intent aspect is entirely covered by the earlier words in the same sentence, which refers to acts for the purpose of having that result. In a letter to the noble Lord, Lord Lester, dated 2 November, which has been placed in the Library, the Minister said:
	"Simply removing the words 'or effect' would mean only those actions which are carried out with the express purpose of violating another's dignity or creating an intimidating environment could constitute harassment".
	Exactly—that is precisely the result that I am trying to achieve with this amendment.
	The Minister also said that the same wording is found in other legislation, including that directly related to Sikhs and Jews, and that this amendment would create an inconsistency. Possibly because I found myself simultaneously coping with another major Bill and not having the benefit of flocks of paid researchers such as are enjoyed by Ministers and Members of the other place, I did not have the time to look up what she was talking about. If I had, I would have used this Bill as an opportunity to try to remove such a patronising and condescending provision at the same time. If such provisions exist elsewhere, as the Minister says, they are equally wrong. If we have not yet seen a crank or malicious claim, that does not mean that we will not in the future. It is certainly no excuse to leave a similar, objectionable provision in the Bill.
	Earlier this evening, I said that the Minister could not accept the amendment, or did not want to. Actually, I think that it would create a considerable inconsistency, as she says in her letter to the noble Lord, Lord Lester of Herne Hill. It is not that she does not think that the words should go, but rather that it is difficult to get rid of them because they appear elsewhere.
	The words that I object to, and wish to remove, are those that create an offence merely because a person claims that some act or other, however innocuous, has adversely affected him mentally. How is anyone going to be able to climb into the mind and see if it really did? Are we really going to have to rely on the courts to decide whether it was reasonable for him to take offence? I cannot understand why the Government are so obdurate in refusing to remove these two words. They do not prejudice the working of the clause.
	I commented on Report that I was not supporting the amendment of the noble Lord, Lord Lester of Herne Hill—to delete Clause 47, as it was then—because I thought the Government would except the words "or effect". If you take those words out, the rest of the clause is a good one in that it stops people being harassed, intimidated or made nervous. With those words, however, it is totally unacceptable. So it is more than what I said before—that I had reservations because it was, in effect, throwing the baby out with the bathwater. It was purely that I thought that there was enough left in that clause to make a good clause. I did not want to force the Government to get rid of something that might be helpful.
	The political correctness and cotton wool nannying that these two words generate can lead only to endless litigation. The Minister will tell me that they will not, because she can give me examples of other Bills that include them. They should not be in this Bill; they should not be in the other Bills. I am going to test the opinion of the House in a moment, and very much hope that we are going to be able to remove these two offensive words. They change what ought to have been a very good clause.
	If the Minister is unable to accept that—I suspect that she is not, because she has been listening to me a lot and simply says no because it is inconsistent with other Acts and so on and so forth—I will advise all my noble friends that they will have to vote to get rid of Clause 45. I would be sad if that is what we would have to come to, because there is value in that clause.
	If the Minister were able to agree with my amendment, there would be no need for the other amendment. However, the noble Lord, Lord Lester of Herne Hill, has kindly spoken to me at length and has suggested to me that I should not divide the House because I cannot win, and that, by advising my colleagues to vote for Amendment No. 14, that amendment could be won. I said to the noble Lord that I would think about it, and I did. Two points come to mind, however. First, if there is a wish to make this clause better, then I am amazed at what the noble Lord has said. He says that we could support him in getting rid of the whole thing, but he would not find it possible to support getting rid of the two words that make it offensive.
	That is one reason why I will test the opinion of the House. If the reality of the situation is that we do not win, I will support the noble Lord, Lord Lester, and would advise my noble friends to do likewise. The second reason why I am not prepared to do as the noble Lord suggested is because, although I want to get rid of those words, I believe that the rest of the clause is acceptable. I feel that when you believe in something, you have to do what you believe. I beg to move.

Lord Lester of Herne Hill: My Lords, first, I make it clear that in speaking to this amendment I am speaking to the entire group of amendments. I am sure noble Lords will be relieved to hear that I shall make just one speech. Secondly, what I am about to say shows no lack of support for Part 2 in relation to religious discrimination. I have no difficulty about those provisions, which are very important and which we support. Thirdly, my object is to persuade the Minister and, for that matter, the noble Baroness, Lady Miller of Hendon, that the right thing to do is to remove this clause from the Bill and get it sent to the Discrimination Law Review so that it can be considered in the light of everything else and then it can come back and we can have a provision of which we can be proud.
	Having said that, we have previously explained our strong objections to the way in which a broad and ill-defined tort of religious harassment has been included in the Home Office part of the Bill, creating a real risk of legal proceedings by the intolerant or the thin-skinned will be brought in the sensitive areas of housing, education or public services. I am not going to repeat them. We proposed that the complex issues surrounding this controversial tort should be removed and reconsidered by the Discrimination Law Review, and the Minister appeared to be sympathetic to that suggestion.
	However, as the noble Baroness, Lady Miller, mentioned, on 2 November the noble Baroness, Lady Scotland, sent me the Home Office's reasons for insisting on retaining religious harassment in Part 2, rather than referring it to the Discrimination Law Review. I am sorry to have to say that it is clear from her letter—this is a bit hard, but it is true—that the Home Office still does not understand the most basic principles of discrimination law. I am delighted to see the noble and learned Lord, Lord Slynn of Hadley, in his place because I am going to refer to one of his judgments. The letter correctly states that Jews are covered by the Bill as an ethnic group but states that "part of designating them" as an ethnic group is "that they have a shared religion". It is not clear to whom the Home Office refers as "designating" Jews as an ethnic group. It is not for it to do so. In any case, it is not true. The letter also asserts that the Race Relations Act protects Jews,
	"from religious as well as ethnic discrimination and harassment".
	I have heard similar views expressed by the Muslim Council of Britain. They are without foundation, and it is a matter of concern that they are given credence by the department responsible for the operation of the Race Relations Act.
	It has been clearly established for a quarter of a century, since the decision of Mr Justice Slynn, as president of the Employment Appeal Tribunal, in 1980 in the case of Seide v Gillette Industries Ltd, which the noble and learned Lord may remember, that Jews are included within the Race Relations Act only as victims of racial, and not religious, discrimination. That decision was followed in the case of Tower Hamlets London Borough Council v Rabin in 1989 and was relied on in the House of Lords case Mandla in 1983. It was also shown in the New Zealand Court of Appeal case called King-Ansell. Jews are protected under the Race Relations Act not because they have a shared religion but because of their shared ethnicity, whether real or as perceived by anti-Semitic discriminators. Exactly the same protection applies to Muslims—I am sorry there is no Muslim Peer here today—who are protected if they have an ethnic identity as well as a religious one; for example, because of their colour or national origins. The typical anti-Semite who persecutes Jews does not usually do so because of their religion but because of what he regards as their tainted ancestry and their blood. The Nazis murdered anyone with Jewish ancestry irrespective of their religious beliefs. It is profoundly dispiriting to encounter such misunderstanding of anti-Semitism and of discrimination law and it is offensive to the memory of millions of Jews slaughtered in pogroms and in Nazi extermination camps. Jews were persecuted and exterminated on the Continent because of their actual or presumed Jewish identity or origin. They were not spared because they were atheists or agnostics.
	It has even been suggested by the Minister that Jews may be removed from the protection of the Race Relations Act altogether and given protection only on religious grounds. I cannot believe that she would really do that because that would be a regressive step that would not only breach the UK's obligations under the European convention, the international covenant and the CERD, but it would also be deeply offensive to the victims of the Shoah and to the entire Jewish community. When the first Race Relations Act was enacted in 1965, with Sir Frank Soskice at the Home Office, it was done in part to combat an increase in racial anti-Semitism. It would be outrageous to withdraw that protection because Muslims as such are not a racial group. I hope that we shall not hear that suggestion again.
	The true position may be summed up in this way. There is religious anti-Semitism and there is racial anti-Semitism. Before the 19th century, anti-Semitism was primarily religious in nature, based on Christian or Islamic interpretations of Judaism. That form of prejudice and discrimination is directed at the religion itself and so usually does not affect those of Jewish ancestry who have converted to another religion. That form of anti-Semitism is covered by the religious discrimination provisions in this Bill, just as religious Islamophobia is covered.
	Racial anti-Semitism is a kind of xenophobia rooted in ideas of race. Racial anti-Semitism became the dominant form of anti-Semitism from the late 19th century until today. It replaced the belief that the religion of Judaism was to be hated with the idea that Jews themselves were a racially distinct group regardless of their religious practice and that they were inferior or worthy of animosity. It is racial anti-Semitism—will the Home Office please listen and note?—that is made unlawful under the Race Relations Act, just as racial Islamophobia is covered by the Race Relations Act.
	To meet the criticism of extreme vagueness of religious harassment, the Home Office relies on the fact that similar language has been used in regulations to give effect to EU directives. That is true and it is regrettable that the Government have not exercised the option under the directives to define harassment more precisely to accord with the British legal tradition. In any event, the provisions of Part 2 of the Bill are not required by EU law; we have a free hand. The Home Office letter adds:
	"If it is desirable to define harassment more closely we consider the place to do so is the Discrimination Law Review with the issue can be looked at across various discrimination strands, not in relation to one equality strand alone".
	We agree and that is why we seek to remove the tort from the Bill so that it can be considered by the review instead of being a flawed part of the law of the land.
	To meet the criticism that the Home Office has inconsistently excluded religious, unlike racial, harassment from the provision of goods, facilities and services to the public while keeping it for housing, education and public services, the Home Office has come up with an entirely new and misguided argument. It says that,
	"significant power is exerted in a relationship, as it is in public functions, or employment or education or in the relationship between landlord and tenant".
	That is a novel argument that I have never heard before in an attempt to justify not following the Race Relations Act in relation to racial harassment, which applies to goods, services and facilities. The first answer to that argument is that the Race Relations Act draws no such distinction based on significant power—whatever that means—and the Home Office cannot explain why a different approach should apply to religious harassment.
	Surely significant power may be exerted in relationships covered by Clause 46, such as between a bank and its customers, or an airline and its passengers, or a theatre and its audience, or a hotel manager and his guests. It makes no sense to exclude the tort of religious harassment from those and all other Clause 46 functions but to include the tort of religious harassment in the relationship between a landlord and his tenants, or a teacher and her pupils, or in sensitive public services such as healthcare. If legitimate concern about the harmful effects of this vague tort persuaded the Home Office to exclude it from goods, facilities and services until the review is concluded and a new Bill is introduced, surely the same should apply across the board.
	The Government also suggest that there is "a less obvious imbalance" in relation to the provision of goods, facilities and services to the public but "significant power" may be exerted in all these relationships. If it is right to,
	"consider more deeply the position in relation to relations between individuals and service providers",
	as the Government say, then surely it is right to consider more deeply those matters in all contexts.
	In amendment No. 13, the Home Office now proposes to include an exception for the innocent,
	"display of any material or article".
	Clause 45 covers anything done that has the purpose or effect of violating a person's dignity or creating an offensive environment. The Home Office letter obstinately refuses to delete the effect leaving only "purpose" as proposed by the noble Baroness, Lady Miller. The Home Office believes that,
	"to require proof of an intention to harass in the circumstances in which Clause 47 applies would be to go too far".
	However, the newly fangled Home Office amendment states that,
	"Action taken in connection with the display of any material or article is harassment for the purposes of subsection (1) only if taken for the purpose of producing a result specified in subsection (1)(a) or (b)".
	So the Home Office now recognises the need to prove intent rather than the effects of action taken in connection with the display of any material or object, but not for example if a landlord plays religious music at Christmas in the entrance hall of his flats in an attempt to persuade his tenants to join the church and save their souls.
	Even as amended, the religious harassment provisions would still catch proselytising by way of religious displays and materials such as posters, Bibles, crucifixes and so on because they involve deliberate attempts to persuade people of a different faith or no faith to join the church and they may be interpreted as harming human dignity—whatever that means—or creating an offensive environment. The display of a "Jews for Jesus" poster to persuade me to see the light would violate the dignity of observant Jews and create an offensive environment with the necessary mental element to constitute the tort. That is why the amendment tabled by the noble Baroness, Lady Miller, is not good enough. It would be a deliberate act causing offence to many Jews. Yet why should it be forbidden by law? It was because of concern for free speech that the Home Office did not apply religious harassment to booksellers. But the same considerations apply to what remains of religious harassment in the Bill.
	The Government are trying at the eleventh hour to mitigate the harmful effects of the tort which suffers from the twin vices of vagueness and over-breadth. But their amendments will not remove the flaws from these flawed provisions.
	I will give a few examples before I conclude. Suppose the Christian evangelical owner of a block of flats illuminates his property with Christmas lights around a model depicting Jesus in the crib in the manger, and he does so intentionally to spread the good news of the birth of Christ to his tenants so that they may abandon their Jewish or Muslim faith—or no faith at all. Or suppose that a secular Muslim property owner wishes to display in the entrance hall a copy of the artistic work that unfortunately had to be removed under pressure from Tate Modern showing the Koran in a broken condition and in need of repair. Suppose she does so with the intention of persuading fundamentalist Muslims to modernise their religious practices and utterances, like the editor of the women's magazine in Afghanistan who was recently given two years' imprisonment for challenging a belief that Muslims who convert to other religions should be stoned to death.
	Such action in those two examples would constitute deliberate religious harassment and could give rise to legal proceedings for damages or a declaration or an injunction. That would seriously threaten free speech—the very reason which prompted the Home Office to exclude religious harassment from the provision of goods, services and facilities. The exemption for religious objects would be no defence.
	Given the undefined nature of what constitutes "religion or belief", of "violating human dignity", or of "an offensive environment" in Clause 47(1), and the absence of any filter between claimant and defendant in proceedings brought under Clause 67, the inclusion of this tort would, we believe, encourage divisions within the community and litigation that was against the public interest.
	I am sorry to have taken so long. I shall not speak again on this. But for all those reasons we on these Benches hope that the Government will accept our amendments and refer these issues to the Discrimination Law Review for full consideration.

Baroness O'Cathain: My Lords, I rise to speak to Amendments Nos. 12, 13, 14 and subsequent ones. My noble friend's Amendment No. 12 would of course provide a safeguard, but it does not go far enough. Narrowing down Clause 45 to actions that have the purpose of causing harassment does not eliminate the risk of catching all kinds of perfectly sensible behaviour.
	What if a religious charity knew that some people thought that saying grace at meals was harassment? If it continued to say grace anyway a court could infer a harassment purpose on the basis of its prior knowledge of other people's sensitivities. No, these harassment provisions are just too risky whichever way you slice them. I acknowledge my noble friend's concern about this issue—she is a deeply committed person. We have had discussions on the matter. But in these circumstances I prefer the amendment of the noble Lord, Lord Lester, to delete harassment completely from the Bill. I have put my name to that amendment.
	Turning to government Amendment No. 13, I am reluctant to appear ungrateful when the Government have clearly moved some way towards us on this issue. I know that the noble Baroness, Lady Scotland, has applied her considerable brain to this matter and has sought to offer something which meets the problem. I appreciate that but I am sad to say that this amendment is simply not enough.
	Since Second Reading I have constantly raised concerns about how the religious harassment provisions could be used to attack our religious heritage and undermine liberty. Amendment No. 13 proves that my concerns were well founded. It now appears to be accepted that without this amendment a hospital could be sued for harassment over the placing of Bibles, a local council that holds a public meeting in a church could be sued over the presence of a cross on the wall, and, indeed, a Salvation Army hospice could be sued over a banner on a wall containing a biblical text.
	My concerns about harassment have grown as the weeks have gone by. We live in a crazy world where some individuals are litigious. We live in a country where officialdom increasingly appears to be in thrall to political correctness. That is already having a damaging effect on our heritage. Last week we had front-page newspaper headlines about officials at Lambeth council trying to ban Christmas lights; Inland Revenue officials banning support for a Christian charity that sends Christmas presents to needy children; and museum staff deleting references to Christ from exhibits. We need to be sure that the Bill does nothing to encourage this kind of lunacy. Although the government amendment addresses religious objects, I am worried that it does nothing for free speech, as the noble Lord, Lord Lester, said.
	On Report I tabled an amendment on behalf of the Church of England, which addressed not only religious objects but also manifestations of religion. It was intended to protect the saying of grace at meals and conversations about religion. The government amendment, to be fair, copies my amendment in some ways—and I am flattered—but it deletes references to manifestations of religion.
	I understand that officials felt that this area was too difficult to address, but we cannot just leave the matter to the tender mercy of hostile litigants because it is too difficult for officials to address. We cannot ignore the plight of the Christian hospice that could be sued for saying grace, or the prison chaplain who is told he cannot initiate conversations about God with inmates, or the Inland Revenue employee who is banned from wishing his clients a merry Christmas.
	I think that the whole issue of harassment is absolutely fraught and that we would be better off without it. That is why I cannot support the government amendment and instead support Amendment No. 14 and all the subsequent amendments in this grouping, to which I have added my name. I do so because I fear religious harassment could be as damaging to religious freedom and community cohesion as the religious hatred provisions that the Government want to introduce in another Bill.
	Like the noble Lord, Lord Lester, perhaps I may briefly give the House some theoretical examples of the kind of mischief that could result from Clause 45. Let us imagine that a Home Office official gives a talk on community relations. Perhaps he talks about the risks posed by certain religious cults. If one of those present is a member of such a cult, an action could be launched claiming that the official created a hostile environment. What about a GP's waiting room where there are posters on the wall—and I have seen these—from a Government agency advertising a telephone helpline for members of ethnic minorities who are being coerced into forced marriages. If a woman comes in who believes, as a matter of faith, in arranged marriages, could she lodge a claim that the poster created a hostile environment?
	What about the case of a pagan who outwardly says he is a pagan and is in gaol for a paedophile offence? The chaplain criticises the occult and warns prisoners to have nothing to do with it. The pagan could claim harassment; he could seek an injunction. Does this case sound ridiculous? These are the facts of a real case, brought in Australia under religious vilification legislation. It did not succeed under Australian law, but it illustrates the kind of case that could be brought.
	We are not legislating in a vacuum. We are legislating in a climate where there are already some who view the equality agenda as a pretext for attacks on faith. I quote from last Sunday's Observer:
	"A local authority is to pull the plug on its funding for festive lights because Christmas does not fit in with its 'core values of equality and diversity'. Waveney District Council, based in Lowestoft, Suffolk, said that because Christmas focuses on the Christian faith, it had decided its 'equality and diversity' commitments were not being met".
	This is ludicrous.
	Sadly, even the Home Office itself is making headlines on this issue. In one of yesterday's papers it was revealed that Home Office officials are threatening to withdraw funding from a memorial carol service for the victims of crime because it is too Christian. It suggested holding the service at a secular venue. This is precisely the kind of over-sensitivity that this harassment provision will foster. Removal of the provision would remove a considerable source of uncertainty and, indeed, anxiety from the Bill. I do hope for great support for Amendment No. 14 in the Division Lobby.

Lord Waddington: My Lords, two amendments in this group are directed towards mitigating the worst effects of Clause 45. I refer to Amendment No. 12, to which my noble friend spoke at the beginning of this debate, and government Amendment No. 13. So long as Clause 45 stands, it will remain all too easy for public authorities to ban religious activity on the pretext that such activity could be found to have the purpose of violating somebody's dignity or creating an offensive environment for him. So I support the amendment, which the noble Lord, Lord Lester, is going to move, to delete Clause 45 and I am afraid that I cannot support my noble friend on Amendment No. 12 is concerned.
	I want to make a general point. Of course, one should be sensitive to other people's feelings, but I think society has some reason to be worried about the gross and disproportionate way some people react to real and imagined slights and take offence at views expressed by others. It would be a great pity if by changes in the law we were to give encouragement to the over-sensitive to rush to the courts to correct real and imagined grievances. But the real worry, as many noble Lords have said in previous debates, is not that people will rush to the courts to bring actions for religious harassment; it is that public authorities will play safe and restrict the right of Christians to practise and demonstrate their faith for fear of finding themselves on the wrong side of the law.
	To that end, they may put a stop to any manifestation of the Christian faith in public buildings by, for instance, cutting funding to Christian welfare charities because they say grace before meals. One has to look only at the circumstances referred to by my noble friends—the reluctance of certain authorities to celebrate Christmas and all the nonsense of the Home Office apparently threatening to withdraw funding for an annual memorial service at St Martin's in the Fields for the victims of crime—to realise that the fears expressed by Christian bodies are not fanciful. They are real.
	We are being dangerously complacent if we imagine that if Clause 45 stands we will not find public authorities banning Bibles from hospitals, crosses from cemeteries and crematoria, and chaplains from prisons. Amendment No. 13 does something to protect the display of crosses and Bibles. No government amendment does anything to protect religious debate—in short, to protect free speech.
	I fear that under existing law the pendulum has swung dangerously far against free speech. I do not believe that when the Public Order Act was passed in 1986—I was in government at the time—anyone thought that that Act would be used to punish a minister of religion for preaching against the commission of homosexual acts. Yet that happened in Bournemouth a couple of years ago. The minister preaching against homosexual acts was assaulted by a group of young men—claiming no doubt that their dignity had been violated—but they were not even cautioned. It was the minister of religion who was punished.
	Personally, I think that that prosecution was outrageous, but that is not my point. My point is that there are already plenty of weapons in the hands of those who wish to suppress free speech and already too many opportunities for those who want to see the free expression of religious views curtailed. I do not want to add to their armament. Most people can see the sense of legislation to prevent discrimination—almost everyone does. Legislation to stop people being offended is a very different kettle of fish.

Baroness Scotland of Asthal: My Lords, I understand that. Let us look at why the provision is there. It does have, if I may respectfully say so, a purpose. The amendment would remove it. As I have made plain before, those words are used in other key pieces of discrimination legislation. It is there in the Race Relations Act 1976 and the Employment Equality (Religion or Belief) Regulations 2003 without causing problems in those areas. It is a principle of discrimination law that you need to show that the actions of a person were intended to discriminate or harass. That is clear.
	For example, if the police were to adopt a policy that led to discrimination or harassment of Asians, it would not matter that they did not intend that to be the result. What is important is that their actions have in fact led to discrimination or harassment. The Government think the situation should be the same in the case of discrimination on the grounds of religion or belief. It should not be acceptable, for example, if the Prison Service were to adopt a policy that created an offensive environment for Muslims, that it could simply claim that that was not its intention.
	It is also important to bear in mind that one has to look at not only Clause 45(1), but also Clause 45(3). That makes it clear that:
	"Action by A shall be regarded as having the effect described in subsection (1)(a) or (b) only"—
	I emphasise "only—
	"if it should reasonably be regarded as having that effect having regard to—
	(a) B's perception, and
	(b) all the other circumstances".
	So when we consider the concern that has been expressed about a capricious or irrational situation, I respectfully suggest that Clause 45(3) deals with that concern.
	We have brought forward our own amendment to the harassment clause, which we will debate further in a moment. We believe this goes a long way towards addressing the concerns the noble Baroness had—as did others, such as the noble Baroness, Lady O'Cathain—about accidental harassment or something that was not intended. The amendment centres on religious material or articles, but does not include religious practices. This is because religious practice is a very wide concept, and to say that a religious practice could never constitute harassment unless that was the intended effect is too much.
	In most cases, if a person receiving a public service felt harassed by religious activity, the solution would lie in simple practical measures, like making it possible to opt out of that practice in some way by doing something different so they do not feel so negatively about it. That is what the normal remedy would be, and what we believe would actually happen in most circumstances when dealing with people providing a public service. However, we recognised that it may not be so easy to adapt a physical environment, particularly where there are many different uses, perhaps including worship. It should be possible to adapt religious behaviour, though—even religious practice—in the context of the delivery of a public function. There has been a lot of debate in the House this afternoon that does not go to the public function but to the general expression of what people feel, but we have to concentrate on the fact that we are dealing with the exercise of public function.

Baroness Scotland of Asthal: My Lords, it refers to housing. Noble Lords will know that the whole issue of what public functions are and what other issues are involved was dealt with when we talked about them earlier. It seemed to me that part of the discussion was not in terms of exercising a public function or providing accommodation, or those other matters. It was put in a very general way. It is important that we concentrate on what we are talking about in this part of the Bill.
	While I am on harassment and the nature of this part, there is a difficulty regarding what has been said about what defines and does not define a religion. I hope I will be able to say a little more about that in a short while.
	Who could say that it is right to harass on the grounds of someone's religion or belief in areas such as the provision of services by prison officers to those imprisoned, or immigration officers, or other dischargers of public functions? To say we will not act against such behaviour now in a Bill that—with considerable Cross-Bench support—tackles discrimination on grounds of religion or belief would send the wrong message about what is and is not acceptable, particularly to those communities that are most likely to suffer from this form of discrimination.
	The noble Lord, Lord Lester, suggested on Report that the Protection from Harassment Act 1997 provides sufficient cover in respect of harassment so that a separate provision in discrimination law is not necessary. I make it plain that we do not agree. The 1997 Act essentially covers behaviour that causes alarm and distress, that is unacceptable between any two individuals in our society, and that may be thought to be the precursor of violence. The use of the Act may have broadened from stalkers, its initial target, but does not cover the same range of behaviour as discrimination law. I understand what the noble Lord, Lord Waddington, has to say about the fact that it was never intended so to do, but it has developed, although it has not quite developed this far.
	In Part 2 we are concerned to protect individuals due to the specific relationship between them and a harasser because the harasser is providing a public service or other service that they need, or is involved in providing them with education or vocational training, or is their landlord, or is providing a roof over their head. We think it right to consider more deeply the position between individuals and service providers in the area of goods, services and facilities where there is a less obvious imbalance, and where the recipient or the customer frequently has more choice in how they are obtained. It is for that reason that we have put those matters into the discrimination review.
	We recognise that concerns remain around this issue—this debate itself demonstrates that—and that there are particular concerns to ensure that faith groups providing public functions do not by accident find themselves subject to a claim. We have said that we are willing to discuss the details of exemptions in all the areas affected. We have laid a further amendment to that end today, which I have already discussed. We will continue to consider these issues as these proposals are further discussed and implemented. But to remove the prohibition on harassment altogether from the Bill now would in our view fail those who may currently be suffering injustice in these areas.
	If it passes into law, we will have no power other than by use of primary legislation to change the definition of harassment in this Bill but it is right that it should be reviewed across the piece in the Discrimination Law Review rather than introducing a separate definition for this one strand at this point. In addition, we have a power to create new exceptions in the area of public functions or to vary the exemptions elsewhere in Part 2, if we do find that these provisions cause us unexpected problems. If some of the fears that have been expressed in this House prove to be correct, we have a vehicle with which to address them.
	I turn to the amendment of the noble Lord, Lord Lester. I understand what he says about it. He asserts that we have misunderstood the definition of religion. I hope to clarify our definition. The noble Lord quite rightly referred to the House of Lords' decision in Mandla v Dowell Lee. In that judgment Lord Fraser said:
	"For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics . . . The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant: (3) either a common geographical origin, or descent from a small number of common ancestors (4) a common language, not necessarily peculiar to the group (5) a common literature peculiar to the group (6) a common religion different from that of neighbouring groups or from the general community surrounding it . . . A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it".
	That is why, using that definition, the Government believe it is right that an ethnic group is not defined by its religion but that it can in part be so defined. We believe that definition is helpful.

Baroness Scotland of Asthal: My Lords, as the noble Lord will know, we are dealing not simply with the Jewish community but also with the Sikh community. Mandla dealt directly with the Sikh community and its definition. That definition sought to distinguish the kind of issues which can identify people as a group. That by no means undermines the fact that those two groups have a different history but it clearly uses the definition I mentioned, which we consider is a helpful definition.
	I understand absolutely that the noble Lord would prefer this whole issue to be included in the discrimination review. However, we cannot accept that. If that were to be done, there would be no provision which referred to harassment in relation to this category, which is dealt with quite properly under Clause 45. It is simply not a satisfactory solution to say that these provisions can work. As regards the whole issue of discrimination law, the Discrimination Law Review may well come up with a construct that is significantly different from that which we currently have in relation to a number of species of discrimination. The law that we have in each of these areas may change, and change significantly, once that review is complete. However, we have to deal with the situation until the conclusions of that review are issued. We seek to give appropriate protection to all those who may be significantly disadvantaged and discriminated against in relation to the way in which public services are given to them, and in relation to education and accommodation. All of those things are fundamental to the way in which people lead their lives. I respectfully suggest that it would be unjust not to deal with this wrong in a similar way to all the others.
	I say with all the gentleness which I can muster that if one looks at the provisions which were mooted on behalf of those who are discriminated against on the ground of sexual orientation, and one compares those provisions with all the other provisions in this area, one sees that they are almost identical, and not significantly different from that which we wish to implement in relation to religious belief. The difference is that we have not extended the provision to goods and services for the reasons that we have given. Therefore, I invite noble Lords to think very seriously indeed before expunging—because that is what it would amount to—from the Bill an opportunity to prevent people being seriously disadvantaged and to give them better protection. I understand what the noble Baroness, Lady Miller, said in relation to those two words. However, I reassure her that those will be exactly the issues in relation to all the species of discrimination that the Discrimination Law Review will consider. We will not have to wait very long for that.

Lord Roberts of Llandudno: My Lords, we on these Benches support the amendment. As the noble Lord, Lord Roberts of Conwy, said, the intention is to keep as close an eye as possible on the effectiveness of the commissioner's activities. As with every post, one learns from experience. We will see where the strengths of the posts lie and where its failings might be. We may need to alter and look again at the remit and the operation of the commissioner's post. We support the amendment and we are sorry that "and monitor" has come out of Clause 5. We hope that the Government will think again and insert "and monitor" after "review".

Lord Roberts of Llandudno: My Lords, we would support any move that strengthened the commissioner's effectiveness. We see an opportunity here to look at the inequalities in Wales, as the noble Lord, Lord Roberts said. We on these Benches support this amendment.

Lord Evans of Temple Guiting: My Lords, Amendment No. 22 makes specific provision enabling the commissioner to undertake or assist others in research in any other educational activity the commissioner considers necessary or expedient for the purposes of Clause 2. We are in full agreement with the noble Lord, Lord Prys-Davies, that it is vitally important that the commissioner should be able to undertake such research or educational activities. We have complete confidence that the Bill already allows for the commissioner to do this via his supplementary powers in paragraph 19 of Schedule 1, which provides that the commissioner may do anything that is calculated to facilitate, or is conducive or instrumental to, the discharge of his functions. This would include such activities such as commissioning or undertaking research or engaging expert advice, and could be done in connection with any of the commissioner's functions, not just those in Clause 2.
	Our disinclination to include this amendment is based purely on our wish to avoid narrowing the ability of the commissioner to undertake such research. I can therefore reassure your Lordships that we are in complete agreement with the spirit of this amendment, and that in our view the Bill already makes adequate provision for research activities. However, given that these points have been forcefully made by my two noble friends, I will reflect on what they have said between now and the next stage of the Bill to see whether any strengthening is needed in the Bill. There is no disagreement between us; it is simply a question of reassuring noble Lords that the Bill will do what we say it will. In the light of what I have sad, I hope the amendments will be withdrawn.

Lord Evans of Temple Guiting: My Lords, Amendment No. 24 relates to Clause 9. This clause and the regulations which it enables the Assembly to make concern the examination by the commissioner of an individual's case, or of a group of linked cases. It therefore makes sense that at the heart of an examination made using these powers there must be a specific case to be examined.
	The Government consider that, logically, this must mean that the individual whose case it is must give their consent. Alternatively, if perhaps they lack the mental capacity to do so, consent ought to be obtained from someone who the commissioner considers to be an appropriate person to give it.
	It is difficult to see how the commissioner could investigate a case thoroughly when the subject of it refused to give him information about it. If, as I think my noble friend envisages, a scenario arose where an issue of concern was identified by a concerned relative or even a member of the general public, but the older person whose situation had given rise to the concern refused to give his consent for his case to be examined, the commissioner could still decide to take action. He would, for instance, be able to use his powers under Clauses 2 and/or 3 to investigate issues of wider concern and to make a report about them, or issue best practice guidance if he thought that was warranted. Therefore, while I understand the sentiment behind Amendment No. 24, the Government cannot accept it. It would not be right for the commissioner to be able to disregard the wishes of an older person and to examine their case when they did not want him to do so.
	In its Statement of Policy Intentions, the Assembly government have acknowledged that it is important that the cases that the commissioner takes on for examination,
	"raise a question of principle which has a more general application . . . than in the particular case concerned".
	That is very close to saying that they ought to be pursued where they are in the wider public interest.
	Amendment No. 25 seeks to give the commissioner a locus in non-devolved matters by enabling the commissioner to examine the case of an older person in Wales in connection with his power to make representations to the Assembly about non-devolved matters. I have already made clear the Government's position on this matter on many occasions. We cannot accept that the commissioner should be able to exercise his powers directly in relation to non-devolved matters.
	In the light of these explanations I hope that the noble Lord will feel able to withdraw his amendment.

Lord Thomas of Gresford: My Lords, I want to reply to the Minister's explanation. When this matter came before the Committee the noble Lord said—and this is to show that I have read what he said—that:
	"The power to examine individual cases will be an important function of the commissioner, and one that may involve considerable resources".—[Official Report, 26/10/05; col. GC 352.]
	That is right—it is an important function of the commissioner. Why then, if the commissioner wishes to look at non-devolved matters under Clause 23 should he be debarred from looking at an individual case? Noble Lords will know from their own experience that it is generally speaking the individual case that triggers the wider picture and which causes an investigation to start. It is not some general feeling among the population that it is time to do something about a particular issue—it is an individual case that is important. This is a weakness in the Bill which we will return to at Third Reading.

Lord Rowlands: My Lords, this amendment pursues a point that I raised at the end of Grand Committee, when the Government introduced what was then their new Clause 19, dealing with the complaints procedure in respect of the commissioner.
	This clause is about complaints against the commissioner, the possibility that the commissioner may not have discharged his or her duties properly, and the procedures that would be required if an individual thought that the commission had failed him or her. It is a question not of the commission's independence but of who should finally approve the procedures of complaint against the commissioner.
	In this clause, the commissioner must consult the Assembly and, having amended the complaints procedure in the light of such consultation, send a document to the Assembly, as in subsection (5). I suggest that there is a case for the Assembly having greater responsibility for these procedures. They are drafted to ensure that the individual has a right to complain against the commissioner's performance of his or her duties. I do not believe that, in that instance, the commissioner should be the final arbiter. What if, for example, the Assembly did not think that the commissioner was bringing forward procedures that were robust and rigorous enough to deal with the complaints against him or her?
	What if the Assembly found itself at loggerheads over these procedures? Under this provision, the commissioner could stick to his or her guns and establish a procedure for complaint about him or herself. It is not the case—as my noble friend indicated very briefly at the end of our discussion we had—that an amendment of this kind would somehow impinge upon the commissioner's independence. This is nothing to do with the discharge of the commissioner's functions in, for example, pursuing grievances. Of course he or she must have total independence in that respect, but I doubt he or she should have total independence in dealing with developing a complaints procedure against him or herself. In this case, there is a strong case for the commissioner to seek the approval of the Assembly when establishing such procedures. I beg to move.

Lord Evans of Temple Guiting: My Lords, this amendment was discussed at some length in Grand Committee and at Second Reading. I will avoid going over old ground today.
	As I said in Grand Committee, our primary concern is the greatly increased workload that the amendment would place on the commissioner. This would in turn reduce the effectiveness of his role. Setting the age threshold at 50 would provide the commissioner with too broad a remit, covering one-third of the population of Wales.
	I would also like to address the concerns that were voiced in Grand Committee that older people in Wales would somehow be disadvantaged in comparison with those in England. The noble Lord, Lord Roberts, returned to this point this evening. I can clarify that the strategy for older people in Wales—like its sister strategy Opportunity Age—has an age threshold of 50. Both documents set out a way forward for planning for old age. The new age equality regulations which will apply equally in England and Wales set no qualifying age and safeguard people of any age from unequal treatment at work. The Commission for Equality and Human Rights will likewise operate in Wales as well as in England to promote human rights and enforce the age equality and disability legislation.
	I reassure the noble Lord, Lord Roberts of Conwy, that there will be nothing available in England which will not be available to older people in Wales, all from the age of 50. The sole difference between the two countries is that there will be a Commission for Older People in Wales that will offer additional support to people aged 60 or more in Wales. In Grand Committee the noble Lord made the point that needs cannot be defined purely by age. He talked of people aged between 50 and 60 who may be experiencing health problems and queried whether there would be some flexibility for the commissioner to operate on their behalf. Of course there will be deserving cases—no doubt along the lines that the noble Lord indicated—that the commissioner will not be able to involve himself in because the person concerned is under 60. But we have to draw a line somewhere and we believe that 60 is a sensible and pragmatic choice.
	A number of the issues that the commissioner uncovers that are problematic for people aged 60 or more and then addresses will have a positive effect on the experiences of people who are slightly younger and share similar difficulties. Standards will be raised for a wider age group than just those of 60 or more. I hope that with this explanation the noble Lord, Lord Roberts of Conwy, will be able to withdraw the amendment.

Lord Roberts of Conwy: My Lords, I am grateful to the Minister for what he has said and his assurance that we shall not be at a loss in Wales simply because our commissioner starts with people aged 60 while Opportunity Age in England declares 50 to be an appropriate starting point. I beg leave to withdraw the amendment.